Ellora’s Cave: Docket Item 69 Now Available (Marc Randazza Was Right)

I’d forgotten to set a due date on one January to-do item, so I missed that Ellora’s Cave v. Dear Author docket item 69 became available last week. I finally thought to check today, and have uploaded it to my Dropbox and also updated the docket.

Docket item 69 is a transcript of the case management conference that took place on January 26, 2015. There are a lot of tidbits in this 22-page document that are interesting, and I’ve included three highlights below.

Discovery Dispute Wasn’t

Transcript of the above (emphasis added):

MR. MASTRANTONIO: Your Honor, essentially I would go forward with the depositions of the persons I would need to depose, namely the author of the article and perhaps some of her associates.

I do have some written discovery. There may be some subpoenas I have to issue as well.

The thought would be that I would do all of that. Defense counsel would not have to go through the prolonged process of deposing my clients, going through records and so forth, unless after a summary judgment motion is filed and not granted, then he would be able to take those steps.

But the thought would be that if I do my discovery first and he’s confident he’s going to win on summary judgment, we’re going to save everyone a lot of time and money in the discovery process.

Ellora’s Cave Offered A Settlement

[THE COURT:] Has there been any settlement discussions? What has been the plaintiff’s demand?

MR. MASTRANTONIO: Your Honor, the demand was to have the article retracted and for $50,000.

THE COURT: Has there been any offer in the case?

MR.RANDAZZA: No, Your Honor.

THE COURT: All right. Well, then there is no need for mediation, arbitration, summary bench trial if there is not any real efforts at this point. If you are so far apart, I’m not going to waste anyone’s time in that regard.

Judge Asks About Another Case…That Randazza Worked On

THE COURT: Am I mistaken? Maybe I’m thinking of another case or another issue. Is there not a case out of the Sixth Circuit? Wasn’t there a case down in Cincinnati involving a cheerleader of some sort who was the subject of a blog or subject of some disparaging remarks?

MR. RANDAZZA: Yes, Your Honor.

THE COURT: And didn’t she prevail at trial or something of that nature?

MR. RANDAZZA: It was Jones versus Dirty World Entertainment, Your Honor. I actually worked on that case.

THE COURT: Did the plaintiff receive, what, $38,000 in damages there?

MR. RANDAZZA: It was overturned on appeal.

It’s actually the only case law I could find on CDA § 230 in the Sixth Circuit. Still, gotta be disheartening to be opposing counsel when the defense’s attorney is so so so far ahead of you.

And the huge ignorance about how the courts actually work (or don’t…), leads to casual observers believing that, a) since the suit was filed, it had merit; and b) since the suit was settled, EC ‘won;’ and c) since EC ‘won,’ then anything and everything Dear Author said in that post is a ‘lie’ designed to damage poor wittle Jaid Black/EC.

I am uncomfortable with the common equation of being incorrect with lying, though. I think the word lie is quite overused. You can have a reasonable belief in something that happens to be untrue, say so, and not be lying. Lying should be reserved for deliberate falsehoods.

(I also don’t think that failing to disclose she’d changed from reader to reader/author is a lie. There were definitely some ethical issues there, though.)

Just a note: I am not saying Jane lied in The Curious Case; I’m saying that a lot of people (and not all of them EC’s lapdogs) are interpreting the fact that Jane settled with EC as an admission, by Jane herself, that she lied.

Of course EC is going to spin the settlement as a win, regardless of the actual terms; my point is that, if more people knew a bit more about how the courts work, fewer of them would believe that nonsense.

Maintaining The Integrity Of The Profession
Rule 8.1 Bar Admission And Disciplinary Matters
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Why didn’t Randazza simply bring up the case management conference, specifically the relevant bits you quoted, when asking for the extension for discovery/replying to EC’s motion? If I understand correctly, the document was not in the docket, but there were notes somewhere, or it wouldn’t have ended in the docket now.